SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case No: 12160/2024P

In the matter between:

THULISWA DLAMINI Applicant

and

DAPHNEY NOMPHINI BUDAZA First Respondent
NTOMBELA MBANJWA Second Respondent
THE GREATER KOKSTAD MUNICIPALITY Third Respondent
___________________________________________________________________

ORDER
The following order is made:
1. The late filing of the first and second respondents ’ answering affidavit is
condoned.
2. The late filing of the first and second respondents’ heads of argument is
condoned.
3. The first and second respondent s, and all those who occupy the premises
known as House No 4[...], L[...] Location, F[...] (‘the property’), by virtue of the first
respondent’s occupancy thereof, be and are hereby evicted from the property within
90 days of the service of this order.

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4. In the event that the first and second respondents and all those who occupy
the property under or by virtue of the first and second respondent s’ occupancy
thereof, refuse to vacate the property within the period stated above, the sheriff of
this court and/or his deputy be and is hereby authorised to forthwith enter upon the
property and to evict the first and second respondents and all those who occupy the
property under and by virtue of their occupancy thereof.
5. The first and second respondents are ordered to pay the costs of the eviction
application.


JUDGMENT


D Pillay AJ:

Introduction
[1] The applicant has instituted eviction proceedings in terms of s 4(1) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(the PIE Act) against the first and second respondents.

[2] The applicant alleges that she is the lawful owner of the immovable property
described as Erf 4[...] F[...], Registration Division ES, Province of KwaZulu -Natal in
the extent of 302 square metres , held under Deed of Transfer 37111/2015 and
situated at House No 4[...], L[...] Location, F[...], hereinafter referred to as ‘the
property’.

[3] The crux of the applicant’s case is that the first and second respondents and
those occupying the property are unlawful occupiers, and that it is just and equitable
to evict the first and second respondents together with those occupying the property.

[4] The first and second respondents have opposed the application and also
sought condonation for the late filing of their answering affidavit. There was no
opposition from the applicant regarding the condonation sought for the late filing of

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the affidavit. I have taken into account the reasons provided for the late filing, the
extent of the delay, the issue of prejudice and the prospects of success in opposition.
I am of the view that the reasons for the lateness of the affidavit have been
sufficiently explained and that there is no prejudice to the applican t in having
recourse to the answering affidavit. The first and second respondents ’ counsel also
sought condonation from the bar for the late filing of the respondents ’ heads of
argument. The late filing was on account of counsel for the respondents having been
briefed late and taking on the matter at the stage when he was ill. I accepted the
explanation and condoned the late filing. There was no opposition to the late filing of
the first and second respondents ’ heads of argument. It is furthermore in the
interests of justice that the late filing of the answering affidavit and late filing of the
first and second respondents’ heads of argument be condoned.

[5] The second respondent alleges that the occupation of the first and second
respondents and those occupying through them was as a consequence of an oral
sale agreement and that the purchase consideration was to be paid in instalments.

[6] The applicant served the relevant notice in terms of s 4(2) of the PIE Act on
both the first and second respondents . The first and second respondents have not
raised any procedural challenge regarding the service of the notice in terms of s 4(2)
of the PIE Act. I will therefore proceed to decide this application by first setting out
the relevant background facts.

Relevant background facts
[7] The applicant has provided the title deed evidencing her ownership of the
property. The applicant has established that she is the owner of the property, and
that ownership of the property passed to her through the third respondent and was
effected by way of a deed of transfer dated 20 November 2015.

effected by way of a deed of transfer dated 20 November 2015.

[8] In 2016, the applicant entered into a verbal lease agreement with the first
respondent in terms of which the applicant was to receive R700 per month . The
commencement of the oral lease agreement and the duration thereof remain in
dispute, however, such disputes are not material to the main issue which pertains to
the ownership of the property.

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[9] The applicant alleges that when she sought to claim possession of her
property, she discovered that the property was occupied by the first and second
respondents and other unlawful occupiers. According to the applicant, despite
several verbal and written notices to the first and second respondents and other
occupiers to vacate the property, such demands were ignored and the first and
second respondents and other occupiers refused to vacate the property.

[10] It is significant to point out that despite a notice to oppose having been filed by
both the first and second respondents, the application was only challenged through
the answering affidavit of the second respondent , which was confirmed by the
confirmatory affidavit of the first respondent.

[11] The version tendered by the second respondent on behalf of the first
respondent is that sometime in April 2016 , the first respondent made an offer to the
applicant for the sale of the property, which offer was accepted in the presence of
two witnesses. The material terms and conditions were that the purchase
consideration was to be in the amount of R70 000, which w as to be paid in
instalments. The applicant has disputed that there was ever such an oral sale
agreement concluded, and that any such agreement would be null and void , as the
sale of immovable property must be reduced to writing.

[12] Whilst the first and second respondents’ version raises a dispute of fact, the
application falls to be considered on the first and second respondents’ version and
the probabilities of their version in light of the facts accepted by the applicant. In this
regard, it emerged through both the application papers and through submissions in
argument, that the property remains under the ownership of the applicant, and that to
date, there has been no transfer effected in favour of the first respondent.

[13] Whilst the applicant makes reference to verbal requests to vacate, the first

[13] Whilst the applicant makes reference to verbal requests to vacate, the first
written notice to vacate is that of 3 November 2021, in which the applicant referred to
the verbal lease agreement for a period of three years and the rental of R700 per
month. Accordingly , in determining the date upon which the first and second
respondents and those occupying through them have been in unlawful occupation,

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the 3 November 2021 notice would constitute the date when such occupation can be
deemed to be unlawful, as such occupation was without the express consent of the
applicant.

[14] In opposing the application, the second respondent does not challenge the
first respondent ’s receipt of the notice to vacate dated 3 November 2021. Most
importantly, it is significant to point out that the first and second respondents do not
dispute the commencement of the verbal lease agreement in 2016 for a period of
three years, as pointed out in the letter of 3 November 2021.

[15] Whilst the applicant did not explain why the lease continued after the expiry of
the three -year period, there was no dispute that the occupation of the first and
second respondents was subject to a lease agreement at some stage.

[16] Accordingly, the crisp question that arises for consideration is whether the first
and second respondents have raised a valid defence and whether all the
requirements of s 4 of the PIE Act were complied with.

Evaluation
[17] Section 4(7) of the PIE Act provides that:
‘If an unlawful occupier has occupied the land in question for more than six months at the
time when the proceedings are initiated, a court may grant an order for eviction if it is of the
opinion that it is just and equitable to do so, after considering all the relevant circumstances,
including, except where the land is sold in a sale of execution pursuant to a mortgage,
whether land has been made available or can reasonably be made available by a
municipality or other organ of state or another land owner fo r the relocation of the unlawful
occupier, and including the rights and needs of the elderly, children, disabled persons and
households headed by women.’

[18] In their answering affidavit, the first and second respondent s sought to raise a
point of non -joinder, alleging that nine other occupants , being the relatives and
children of both the first and second respondent s, ought to have been joined as a

children of both the first and second respondent s, ought to have been joined as a
fourth respondent in the proceedings. At the hearing of the application , counsel for

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the first and second respondent s abandoned this point and conceded that they were
indeed occupiers through both the first and second respondents.

[19] The first and second respondents’ opposition to their eviction is premised
squarely on the basis that they are not unlawful occupiers . The ir reliance is
predicated on an alleged oral sale agreement of the property . The alleged oral sale
agreement has been emphatically disputed by the applicant. The dispute accordingly
falls to be determined on the first and second respondent s’ defence, the probabilities
of their version, and whether such defence constitutes a valid defence in law. The
sale of immovable property is governed by the Alienation of Land Act 68 of 1981 (the
Alienation Act).

[20] Section 2(1) of the Alienation Act reads as follows:
‘No alienation of land after the commencement of this section shall, subject to the provisions
of section 28, be of any force or effect unless it is contained in a deed of alienation signed by
the parties thereto or by their agents acting on their written authority.’

[21] It is trite that where a statute requires a contract to be in writing and signed,
an oral contract is void ab initio and incapable of being rendered valid by the
subsequent conduct of the parties. 1 The effect of non -compliance with the
requirements of s 2(1) of the Alienation Act is that the contract shall not ‘be of any
force or effect’ , as it is expressly stated so in the section. 2 Accordingly, the oral
agreement upon which the first and second respondents place reliance remains void
as a consequence of the statutory formalities not being met.

[22] The peremptory requirement by the legislature that a contract for sale of land
be reduced to writing is to achieve certainty in transactions of considerable value and
importance. The requirement is peremptory , having regard to the fact that the terms
and conditions agreed upon are often intricate and complex. The requirement thus

and conditions agreed upon are often intricate and complex. The requirement thus
prevents the risk of perjury, fraud and unnecessary litigation.3

1 Cooper and another NNO v Curro Heights Properties (Pty) Ltd [2023] ZASCA 66; 2023 (5) SA 402
(SCA); Van Leeuwen Pipe and Tube (Pty) Ltd v Mulroy and Another 1985 (3) SA 396 (D) (Van
Leeuwen) at 400F-H.
2 Wilken v Kohler 1913 AD 135 at 143.
3 Ibid at 149; see also Clements v Simpson 1971 (3) SA 1 (A) at 7A-B.

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[23] The basis of the oral agreement , which is vaguely contended for by the first
and second respondents, is summed up as follows:
‘The material terms and conditions of the said sale was that the agreed sale price was
R70,000 which was to be paid (sic) instalment.’

[24] I am of the view that the first and second respondent s’ version is clearly
untenable and unconvincing in circumstances where there has been no evidence
provided which aligns with the claim of an agreement of sale. There is no detail
provided insofar as when and how payment was to be made. There was also no
plausible explanation for why the first respondent made no claim for transfer of the
property from the applicant after allegedly making payment. The belated explanation
provided from the bar was to the effect that the first respondent is an unsophisticated
person and, therefore, the formalities were not complied with.

[25] The alleged ‘unsophisticated’ claim belatedly raised by counsel is rejected .
This is especially in light of the fact that the first respondent failed to assert or
institute any claim as the owner of the property , or a counter -application in the
present proceedings. The claim of being an owner could have easily been pointed
out after the first respondent completed payment , or even at the stage when the
second respondent was served with a notice of eviction on 30 November 2021 ,
being the date when the applicant confirmed in the notice that the first and second
respondents’ occupation stemmed from a rental agreement which commenced in
2016.

[26] The version of the first and second respondents is further untenable, given the
fact that the second respondent, the daughter of the first respondent, has not
claimed to be unsophisticated, and was at all material times aware of the
circumstances pertaining to the rental agreement and the alleged sale of the
property. As a consequence of the second respondent ’s awareness of the

property. As a consequence of the second respondent ’s awareness of the
circumstances surrounding the property, any claim for a refund of the purchase price
could have been pursued upon a breach of the alle ged agreement, which they seek
to rely upon.

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[27] The cash amounts , which have allegedly been paid, are made up of eight
instalments, staggered between the period of 30 June 2016 to 20 December 2019. It
is clear that the alleged purchase amount is a significant amount, and one would
have expected that the minimum material terms , such as the purchase price, the
manner of payment and the description of the property at least be reduced to writing.
It is apparent from the respondents’ version that none of the aforesaid material terms
were reduced to writing, which renders any alleged sale invalid.4

[28] It is also relevant to point out that the first and second respondent s, despite
having alleged that the occupiers of the property include elderly persons and
children, have not expressly averred that the rights of these persons will be
adversely affected by an eviction order. It is apparent that the first and second
respondents’ main complaint is that the applicant will be unjustly enriched in light of
the first respondent allegedly paying the applicant for the property.

[29] It becomes plainly evident from the general tenor of the first and second
respondents’ answering affidavit that they are indeed able to move from the property
on condition that the first respondent is refunded. This becomes apparent from the
following averment in the answering affidavit, which confirms as follows:5
‘The First Respondent advised that lady to inform the Applicant she had paid her my R70
000 for the same premises and she will not move out as she bought the property. The
condition (sic) gave was that its either she gets the refund first before she moves out or else
she will not move out.’

[30] The first and second respondents have accordingly not placed any personal
circumstances before the court and there is no complaint that they or those
occupying the property through them would be adversely impacted should they be
evicted.

[31] The SCA in Jika6 dealt with the issue of onus and commented as follows:

evicted.

[31] The SCA in Jika6 dealt with the issue of onus and commented as follows:
‘Another material consideration is that of the evidential onus. Provided the procedural
requirements have been met, the owner is entitled to approach the court on the basis of

4 Raven Estates v Miller 1984 (1) SA 251 (W) at 255D–E. See also Van Leeuwen at 400 F-H.
5 Answering affidavit para 12.1.33 at page 60 of the indexed papers.
6 Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) para 19.

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ownership and the respondent’s unlawful occupation. Unless the occupier opposes and
discloses circumstances relevant to the eviction order, the owner, in principle, will be entitled
to an order for eviction . Relevant circumstances are nearly without fail facts within the
exclusive knowledge of the occupier and it cannot be expected of an owner to negative in
advance facts not known to him and not in issue between the parties.’ (My emphasis.)

[32] It is relevant to point out that the applicant’s notice in terms of s 4(2) of the
PIE Act also afforded the first and second respondents an opportunity to place
before the court all relevant circumstances, such as the rights and needs of children
or elderly persons and reasons why their eviction from the property should not be
granted. The first and second respondents have not established that there is any
adverse impact on the needs of those occupying the property, or particular relevant
circumstances to be considered, albeit that there is an assertion that the property is
occupied by children and the first respondent.

[33] I have , however, taken into account the fact that the second respondent
resides in the Kokstad area and there is also no suggestion that she is unable to
accommodate her family , being the first respondent and those occupying through
her, or that there is no available alternative suitable accommodation for first
respondent and those occupying through her , or for that matter is there any
suggestion that the first respondent and those occupying through her would be
rendered homeless.

[34] Section 4(8) of the PIE Act obliges a court to grant an order for the eviction of
an unlawful occupier, where it is (a) satisfied that all the requirements of the section
have been complied with; and (b) satisfied that no valid defence has been raised by
the unlawful occupier.

[35] The SCA in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 7

[35] The SCA in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 7
acknowledged the relationship between subsections (7) and (8) and concluded thus:
‘A court hearing an application for eviction at the instance of a private person or body, owing
no obligations to provide housing or achieve the gradual realisation of the right of access to

7 City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others [2012] ZASCA 116; 2012 (6) SA 294
(SCA) para 25.

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housing in terms of s 26(1) of the Constitution, is faced with two separate enquiries . First it
must decide whether it is just and equitable to grant an eviction order having regard to all
relevant factors. Under s 4(7) those factors include the availability of alternative land or
accommodation. The weight to be attached to that factor must be assessed in the light of the
property owner's protected rights under s 25 of the Constitution, and on the footing that a
limitation of those rights in favour of the o ccupiers will ordinarily be limited in duration. Once
the court decides that there is no defence to the claim for eviction and that it would be just
and equitable to grant an eviction order, it is obliged to grant that order. Before doing so,
however, it must consider what justice and equity demand in relation to the date of
implementation of that order and it must consider what conditions must be attached to that
order. In that second enquiry it must consider the impact of an eviction order on the
occupiers and whether they may be rendered homeless thereby or need emergency
assistance to relocate elsewhere. The order that it grants as a result of these two discrete
enquiries is a single order. Accordingly it cannot be granted until both enquiries have been
undertaken and the conclusion reached that the grant of an eviction order, effective from a
specified date, is just and equitable. Nor can the enquiry be concluded until the court is
satisfied that it is in possession of all the information necessary to make both findings based
on justice and equity.’ (My emphasis.)

[36] Having regard to the fact that the first and second respondent s have not
provided a valid defence to their continued occupation of the property and the fact
that there exist no circumstances which are relevant or which preclude the eviction of
the first and second respondents, I am of the view that it would be just and equitable
to grant an eviction order.

Conclusion

to grant an eviction order.

Conclusion
[37] The first and second respo ndents’ claim to ownership is hamstrung by the
peremptory provisions of the Alienation Act. Accordingly, they have not raised a valid
defence in law to justify their continued unlawful occupation. Except for the baseless
claim to ownership, they have failed to disclose any relevant circumstances which
preclude their eviction.

[38] The first and second respondents, and those occupying the property, have
already had the use, benefit and enjoyment of the property for a period of
approximately four years from the date when they received notice of the eviction in

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November 2021. The first and second respondents have been aware for
approximately three years of the applicant's intention to evict them and, accordingly,
they have had a considerable period to prepare to vacate the property. The first
respondent’s meritless claim to being the owner of the property cannot be allowed to
continue indefinitely, whilst depriving the applicant of the use and enjoyment of her
property.

[39] In light of the aforesaid circumstances , it is therefore just and equitable to
order the eviction of the first and second respondent s and all those occupying
through them. The court considers it just and equitable for the first and second
respondents and all those occupying through them to vacate the property within a
period of 90 days from the date of its order , which will enable the unlawful occupiers
to vacate with dignity and have sufficient time to obtain alternative accommodation .


Costs
[40] I am satisfied that there is no reason to deviate from the principle that costs
should follow the result in the circumstances of this matter.

Order
[41] In the result, I make the following order:
1. The late filing of the first and second respondents ’ answering affidavit is
condoned.
2. The late filing of the first and second respondents’ heads of argument is
condoned.
3. The first and second respondents, and all those who occupy the premises
known as House No 4[...], L[...] Location, F[...] (‘the property’), by virtue of the first
respondent’s occupancy thereof, be and are hereby evicted from the property within
90 days of the service of this order.
4. In the event that the first and second respondents and all those who occupy
the property under or by virtue of the first and second respondents’ occupancy
thereof, refuse to vacate the property within the period stated above, the sheriff of
this court and/or his deputy be and is hereby authorised to forthwith enter upon the

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property and to evict the first and second respondents and all those who occupy the
property under and by virtue of their occupancy thereof.
5. The first and second respondents are ordered to pay the costs of the eviction
application.



___________________
D PILLAY AJ


Heard on: 16 October 2025
Delivered on: 18 November 2025

Appearances
For the applicant: Mr Tenza from Tenza Attorneys

For the first and second respondent: Mr Zimema
Instructed by: S Bavu Attorneys